paul hudelson, on behalf of himself plaintiff, … 05, 2014 · purported "mistake" and...

EFiled: Nov 05 2014 11:16Transaction ID 56273088Case No. 10319-

IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE

PAUL HUDELSON, on behalf of himselfand on behalf of all other similarly situated,

Plaintiff,

VIVEK RANADIVE, NANCICALDWELL, ERIC DUNN, MANUEL A.FERNANDEZ, PHIL FERNANDEZ,PETER JOB, DAVID J. WEST, PHILIPWOOD, BALBOA INTERMEDIATEHOLDINGS, LLC, BALBOA MERGERSUB, INC., VISTA EQUITY PARTNERSV, L.P. and GOLDMAN SACHS & CO.,

Defendants.

C.A. No.

VERIFIED CLASS ACTION COMPLAINT

1. Plaintiff Paul Hudelson ("Plaintiff) brings this Verified Class Action

("Complaint") against Vivek Ranadive, Nanci Caldwell, Eric Dunn, Manuel A.

Fernandez, Phil Fernandez, Peter Job, David J. West, Philip Wood, Balboa

Intermediate Holdings, LLC, Balboa Merger Sub, Inc. and Goldman Sachs & Co.

(collectively, "Defendants"). The allegations of the Complaint are based on the

knowledge of Plaintiff as to himself, and on information and belief, including the

investigation of counsel and review of publicly available information, as to all

other matters.

Paul Hudelson v Vivek Ranadive, et al. [TIBCO], C.A. No. 10319-, compl. (Del. Ch. Nov. 5, 2014)

www.chancerydaily.com

PRELIMINARY STATEMENT

2. This case challenges the price being paid by the acquirer of Tibco

Software, Inc. ("Tibco" or the "Company") in a merger transaction set to close

later this year . In what was hailed by Tibco and acquirer Vista Equity Partners V,

L.P. ("Vista") as a $4.3 billion deal, Tibco stockholders recently learned that Vista

will be paying only $4.2 billion, or $100 million less than previously announced.

3. Why the reduction in consideration? Defendants are attributing the

lower price to a purported miscount of Tibco's equity by the investment advisor

Tibco's Board of Directors retained to help it maximize value for Tibco's

stockholders, Goldman Sachs & Co. ("Goldman"). Goldman, one of this country's

leading investment bankers, provided incorrect information to Vista concerning the

number of Tibco shares Vista needed to acquire in the merger.

4. It is unclear if Tibco's Board knew that Goldman had strong ties to

Vista, having advised and co-invested with Vista entities, but one thing is patently

clear. When Goldman claimed to have made this counting error and told the Board

it should accept the lower purchase price, the Board did so without question.

5. The Board, knowing that Vista had intended and agreed to pay $4.3

billion for Tibco, did not: (a) ask Vista to reform the merger agreement to call for

total compensation of $4.3 billion; (b) try to negotiate with Vista to capture even a

portion of that lost $100 million; or (c) tell Goldman that it must answer for its



purported "mistake" and make Tibco's public stockholders whole. The Board

utterly failed to comply with its fiduciary duties to secure the highest price

reasonably available for Tibco, per its Reylon mandate. Goldman and Vista took

full advantage of that failure.

6. This complaint seeks recompense for that $100 million in foregone

merger consideration for the Tibco public stockholders.

THE PARTIES

7. Plaintiff, Paul Hudelson ("Plaintiff), is and has been at all relevant

times, a stockholder of Tibco common stock.

8. Tibco Software Inc. ("Tibco" or the "Company") is a Delaware

corporation and has its principal executive offices in California. Tibco is a leading

independent provider of infrastructure and business intelligence software. As of

September 25, 2014, Tibco had: 163,851,917 shares of common stock outstanding;

4,641,716 shares of common stock issuable upon the exercise of stock options;

3,601,289 shares of common stock underlying performance-based restricted stock;

and 2,934,638 shares of common stock underlying stock-based awards (excluding

4,147,144 shares of restricted stock that are already included in the shares

outstanding, and excluding 1,450,000 shares underlying restricted stock units that

were to be cancelled for no consideration).



9. Defendant Balboa Intermediate Holdings, LLC is a Delaware limited

liability company which has a wholly owned subsidiary, defendant Balboa Merger

Sub, Inc. (together with Balboa Intermediate Holdings, LLC, "Balboa"), a

Delaware corporation. Balboa was formed by affiliates of Vista Equity Partners V,

L.P. in order to acquire Tibco.

10. Defendant Vista Equity Partners V, L.P. ("Vista"), through Balboa,

entered into a merger agreement with Tibco pursuant to which Vista's Balboa will

acquire the outstanding stock of Tibco. Vista and Balboa are sometimes referred

to herein as the "Vista Defendants."

11. Defendant Goldman, Sachs & Co. ("Goldman") is an investment

banker retained by a special committee of the Tibco Board to advise on the fairness

of the Tibco/Balboa merger to the stockholders of Tibco from a financial point of

view.

12. Defendant Vivek Ranadive ("Ranadive") is the Chairman of Tibco's

Board of Directors and is the Company's CEO.

13. Defendant Nanci Caldwell ("Caldwell") has been a director of Tibco

since June 2009.

14. Defendant Eric Dunn ("Dunn") has been a director of Tibco since

April 2004.



15. Defendant Manuel A. Fernandez ("M. Fernandez") has been a director

of Tibco since June 2014.

16. Defendant Phil Fernandez ("P. Fernandez") has been a director of

Tibco since June 2014.

17. Defendant Peter Job ("Job") has been a director of Tibco since June

2000.

18. Defendant David J. West ("West") has been a director of Tibco since

February 2014.

19. Defendant Philip Wood ("Wood") has been a director of Tibco since

its founding in 1997.

20. Defendants Ranadive, Caldwell, Dunn, M. Fernandez, P. Fernandez,

Job, West, and Wood are referred to herein collectively as the "Individual

Defendants" and the "Board."

I . ALLEGATIONS

A. Background On The Merger

21. In the spring and summer of 2014, a number of financial firms made

contact with Ranadive, Tibco's Chairman and CEO, to indicate interest in potential

strategic transactions for the Company, including an acquisition or capital

injection. At that time, Tibco's Board and management did not pursue these



inquiries because they wanted to continue to focus on the Company's standalone

plan.

22. When Tibco's financial results for the second quarter of 2014 were

below Wall Street's expectations, the Board held a special meeting on June 5, 2014

to discuss the Company's standalone plan and growth challenges, as well as a

potential acquisition. Representatives of Goldman attended this meeting and gave

a presentation on Tibco's general position and the strategic alternatives available to

it.

23. Goldman subsequently sent the Board a more detailed market analysis

of the Company, and at a special meeting of the Board on July 11, 2014, the Board

instructed Goldman to engage in a comprehensive review of the strategic

alternatives available to the Company.

24. At a special meeting held on July 29, 2014, the Board determined to

explore a possible sale of the Company, and decided to begin this process by

contacting four of the financial firms that had previously contacted Ranadive. The

Board elected not to contact two additional financial firms that had contacted

Ranadive because those firms were interested only in a financial transaction, not an

acquisition.

25. Three days after the Board decided to explore a sale of the Company,

the Compensation Committee of the Board approved amendments to the



Company's Executive Change in Control and Severance Plan. The August 1, 2014

amendments increased the severance benefits, medical benefits, and percentage of

unvested equity awards that would vest if a participating executive were to be

terminated in connection with a change in control of the Company.

26. On August 15, 2014, one of the financial firms contacted by the

Company indicated that it would be interested in pursuing an acquisition of Tibco

for between $20.00 and $21.00 per share. Another firm indicated its interest in an

acquisition at between $24.00 and $25.00 per share.

27. On August 16, 2014, the Board held a special meeting, with Goldman

in attendance. The Board determined to (1) engage in a further review of the

strategic alternatives available to the Company; and (2) form a Special Committee

for this purpose, comprised of Caldwell, Dunn and West. The Special Committee

was charged with reviewing all strategic alternatives available to Tibco and making

a recommendation to the Board regarding a course of action.

28. On August 18, 2014, the Special Committee held its first meeting.

The Special Committee determined to appoint Goldman as its financial advisor,

and authorized Goldman to contact a number of potential buyers that Goldman had

identified. The retention of Goldman by the Special Committee was memorialized

in a September 1, 2014 engagement letter.



29. Goldman's engagement as financial advisor was structured such that

the vast majority of Goldman's compensation was earned through incentive

payments for closing a deal. Goldman's final transaction fee was approximately

$47.4 million, of which only $500,000 became due prior to the announcement of

the Merger Agreement and the remainder of which was contingent upon closing.

Thus, Goldman was highly incentivized to ensure that a strategic transaction

closed, rather than to ensure that any transaction entered into maximized value for

Tibco's shareholders.

30. On September 3, 2014, the Company issued a press release

announcing the formation of the Special Committee to review the strategic and

financial alternatives available to Tibco. Thus, it was clear that the Company was

"in play" and that the Board was actively seeking an acquisition.

31. In late August 2014, the Special Committee instructed Goldman Sachs

to inform all previously contacted parties that Tibco was seeking preliminary

indications of interest by August 30, 2014.

B. Vista Agrees To Pay An Aggregate Of Approximately $4.3Billion For Tibco

32. On August 30, 2014, Vista provided a preliminary, non-binding

indication of interest in pursuing an acquisition of the Company for between

$23.00 and $25.00 per share.

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33. Over the next two weeks, Tibco management and Goldman met

repeatedly with Vista to discuss a possible transaction. Vista also received access

to Tibco's electronic dataroom. On September 15, 2014, Goldman, at the direction

of the Special Committee, provided Vista with a draft merger agreement. Vista

continued negotiations with Tibco and Goldman thereafter.

34. On September 26, 2014, the Board and Special Committee held a joint

meeting, with Tibco management and Goldman representatives in attendance. At

this meeting, Goldman reviewed proposals submitted by Vista and another party

that had been bidding on Tibco. Vista's current offer at that time was $23.00 per

share. The Board instructed Goldman to work to increase the per share prices in

the competing acquisition proposals, and discussed the financial model and

forecasts that Goldman would use in preparing a fairness opinion.

35. In the process of trying to elicit higher offers from Vista and the other

bidder, Goldman provided Vista and the other bidder with a spreadsheet (the

"Goldman Spreadsheet") containing information about Tibco's outstanding equity

awards and common stock. Unbeknownst to any of the parties, the Goldman

Spreadsheet improperly double-counted Tibco's restricted stock, including it in

both the equity awards and common stock figures. As a result, the Goldman

Spreadsheet made it appear as though Vista would need to acquire 4,174,144

shares more than it really needed to acquire Tibco. In other words, the Goldman

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Spreadsheet misled Vista to believe that it would need to pay the per share merger

consideration for 179,277,415 shares instead of 175,130,271 shares.

36. After receiving the Goldman Spreadsheet, Vista informed Goldman in

the evening of September 26 that it was increasing its offer to $24.00 per share.

Goldman told Vista that its offer was the highest, as the other bidder maxed out at

$23.75 per share. Goldman also told Vista that Tibco's legal counsel would be in

touch with Vista's legal counsel for the purposes of finalizing the merger

agreement, with the goal of signing the merger agreement, if approved by the

Board, the next morning.

37. Using the share price of $24.00 per share proposed by Vista, the

Goldman Spreadsheet produced an implied enterprise value for the transaction of

approximately $4.3 billion.

38. Goldman continued to use the incorrect capitalization numbers from

the Goldman Spreadsheet in a September 27, 2014 presentation to the Board.

Following this presentation, Goldman delivered the Board a written fairness

opinion ("The September 27 Fairness Opinion") opining that the $24.00 in cash per

share of common stock to be paid pursuant to the Merger Agreement was fair from

a financial point of view to such holders of common stock. Based in part on this

presentation and the September 27 Fairness Opinion, the Special Committee then

unanimously recommended to the Board that it approve the Merger, after which

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the Board unanimously: (1) determined that the Merger was fair to, advisable and

in the best interests of Tibco and its stockholders; and (2) adopted and approved

the Merger Agreement and recommended that Tibco's stockholders vote in favor

of adoption of the Merger Agreement.

C. Under The Merger Agreement As Executed, Vista AcquiresTibco For Approximately $4.2 Billion

39. Later in the morning of September 27, 2014, Tibco and Vista signed

the Merger Agreement. At the time the Merger Agreement was executed, both

Tibco and Vista understood the implied enterprise value of Tibco under the

transaction to be approximately $4.3 billion, and their mutual agreement and

understanding was for a transaction with that enterprise value. However, at the

$24.00 share price and using the correct share count, the Merger Agreement only

provided for total merger consideration of approximately $4.2 billion - about $100

million less than the parties had contemplated. At the time the Merger Agreement

was executed, neither Tibco nor Vista realized that the capitalization numbers in

the Goldman Spreadsheet, which the parties had jointly relied upon in the

finalization of the transaction, were different from the capitalization numbers in the

Merger Agreement documents. The Merger Agreement documents did reflect

termination fee calculations in certain circumstances and limits of liability for the

Vista Defendants in certain circumstances that were based upon the incorrect

capitalization numbers.

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40. On September 29, 2014, Tibco issued a press release and Form 8-K

announcing the Merger (the "September 29 Press Release"). The September 29

Press Release was drafted in collaboration with Vista. The September 29 Press

Release stated, among other things, that "Vista will acquire all outstanding TIBCO

common stock for $24.00 per share in cash," and that the, "[transaction values

TIBCO at approximately $4.3 billion[.]"

41. These numbers were, however, erroneous and inconsistent because

they relied upon the capitalization figures from the Goldman Spreadsheet. Had the

deal proceeded at the $4.3 billion enterprise value that was agreed upon by Tibco

and Vista at the time the Merger Agreement was executed, Tibco common stock

holders would have received approximately $24.57 per share.

42. After the announcement of the Merger, the overstatement of the share

count in the Goldman Spreadsheet was discovered. On October 11, 2014, the

Board and Tibco management met with Goldman. At this meeting, representatives

of Goldman presented a revised analysis of the Merger eliminating the double-

counting problem of the Goldman Spreadsheet and reflecting revised capitalization

numbers. Notwithstanding the facts that the corrected capitalization numbers

shaved approximately $100 million off of the enterprise value of the Company as

compared to the announced value of the transaction, and that Vista had

unambiguously agreed to pay the higher $4.3 billion amount (and indeed, had

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announced that the deal was valued at $4.3 billion), Goldman confirmed that there

was no change to the September 27 Fairness Opinion. Following Goldman's

presentation, the Board concluded that the revised analysis provided by Goldman

did not impact its recommendation in favor of the Merger.

43. On October 16, 2014, Tibco filed the Proxy, inviting stockholders to

attend a special meeting to vote on the Merger. According to the Proxy, the

Merger is expected to be completed in the fourth calendar quarter of 2014.

44. On October 23, 2014, the Board met with certain of its advisors to

review the situation arising from the Goldman Spreadsheet. The Board noted that

Vista likely had based its final offer on the capitalization reflected in the Goldman

Spreadsheet and that the Merger Agreement contained the termination fee and limit

of liability calculations referred to above based upon the incorrect capitalization

numbers. The Board believed it could not "force" Vista to increase its per share

price for Tibco, and decided to forego any attempt to negotiate further with Vista

or to seek redress from Goldman. The Board simply agreed to accept $100 million

less than the amount for Tibco that it and Vista had both agreed upon.

D. GOLDMAN AND CERTAIN INSIDERS ARE INCENTIVIZED TOCOMPLETE THE DEAL UNDER ANY CONDITIONS

45. As noted above, Goldman is directly incentivized to ensure this

proposed transaction is consummated. Goldman's engagement fee is structured so

that a vast majority of its compensation is contingent on the closing of a deal.

13



Goldman's total fee for its engagement by Tibco is $47.4 million, only $500,000 of

which became due prior to the announcement of the Merger Agreement. In other

words, a whopping 98.7% of Goldman's fee is contingent on the completion of this

merger.

46. Moreover, Vista has significant prior relationships with Goldman.

Robert F. Smith and Brian Sheth, the co-founders of Vista, are both former

Goldman bankers, with Smith having been co-head of Goldman's Enterprise

Systems and Storage Sector division, and Sheth having worked in Goldman's

Mergers & Acquisitions Group. Of Vista's thirteen principals, seven are former

Goldman bankers. Moreover, Goldman advised Vista on the $2 billion acquisition

of a software company called Misys in March 2012. The Proxy Statement that

Tibco filed with the U.S. Securities and Exchange Commission on October 29,

2014 in connection with the Merger (the "Proxy") does not state whether Goldman

disclosed these relationships prior to Goldman's retention as Tibco's financial

adviser. The Proxy does state that during the two year period ending September

27, 2014, Goldman received approximately $7.5 million in compensation for

financial advisory and underwriting services provided to Vista.

47. The Proxy also contains a telling passage stating that "Affiliates of

Goldman Sachs also may have co-invested with [a Vista affiliate] and its affiliates

from time to time and may have invested in limited partnership units of affiliates of

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[a Vista affiliate] from time to time and may do so in the future." When one parses

out the "affiliate" of an "affiliate" language, the passage leaves open the possibility

that Goldman has an investment in the very Vista entity involved in this

transaction. Therefore, Goldman has an interest in Vista, its longtime business

partner, completing the acquisition of Tibco.

48. Finally, according to the September 29 Press Release, certain

Company insiders, including Defendant Ranadive, will receive lucrative bonuses

if, and only if, the transactions contemplated by the Merger Agreement are

consummated. Upon consummation, Ranadive, the Company's Chairman and

Chief Executive Officer, will receive a $4 million bonus. Additionally, (i) Murray

Rode, the Company's Chief Operating Officer, will receive a $1 million bonus; (ii)

William R. Hughes, the Company's Executive Vice President, Chief

Administrative Officer, and General Counsel, will receive a $500,000 bonus; and

(iii) James Johnson, the Company's Senior Vice President and Chief Financial

Officer, will receive a $500,000 bonus. Therefore, in addition to Goldman, the

Company's top officers, including the Chairman of the Board, are incentivized to

close this deal regardless of Goldman's error.

II. CLASS ACTION ALLEGATIONS

49. Plaintiff brings this action individually and as a class action on behalf

of a class consisting of all public holders of Tibco common stock during the period

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of September 26, 2014 through the present (the "Class"). Excluded from the Class

are Defendants herein and any person, firm, trust, corporation, or other entity

related to or affiliated with any of the Defendants.

50. This action is properly maintainable as a class action because:

a. The members of the Class are so numerous that joinder of allmembers is impracticable. The disposition of their claims in aclass action will provide substantial benefits to the parties andthe Court. As of January 20, 2014, there were approximately1,852 stockholders of record of Tibco common stock, and agreat many more beneficial owners who own over 163 millionshares of common stock;

b. There are questions of law and fact that are common tomembers of the Class, including, inter alia, the following,which predominate over any questions affecting only individualclass members:

• Whether the merger agreement should be reformedto reflect the $4.3 billion total purchase price to whichboth Tibco (through its Board) and Vista had agreed;

• Whether the Board members breached theirfiduciary duties by not even trying to secure payment ofthe $100 million merger consideration that Goldmanclaimed had been calculated in error;• Whether the Vista Defendants used their extensiverelationship with Goldman to aid and abet the Boardmembers' breaches of duty and to secure a lower totalpurchase price for Tibco;• Whether Goldman aided and abetted the Boardmembers' breaches of duty; and

• Whether Goldman committed professionalmalpractice or professional negligence in connectionwith its retention by the Special Committee to advise that

16



Committee on how best to maximize value for Tibco'spublic stockholders.

c. Plaintiff is committed to prosecuting this action and hasretained competent counsel experienced in litigation of thisnature. The claims of Plaintiff are typical of the claims of theother members of the Class, and Plaintiff has the same interestsas the other members of the Class. Accordingly, Plaintiff is anadequate representative of the Class and will fairly andadequately protect the interests of the Class;

d. No difficulties are likely to be encountered in the managementof this action as a class action; and

e. A class action is superior to other available methods for the fairand efficient adjudication of this controversy.

COUNT I(Class Action Count for Reformation of theMerger Agreement Due to Mutual Mistake)

51. Plaintiff repeats and realleges each and every allegation above as if set

forth in full herein.

52. On September 26, 2014, Goldman gave the Vista Defendants the

Goldman Spreadsheet, which reflected that Tibco had 179,277,415 shares

outstanding. The Vista Defendants thus understood that they had to acquire

179,277,415 Tibco shares in order to acquire Tibco. Using that information, the

Vista Defendants proposed to acquire Tibco for $24 per share, for a total purchase

price of $4.3 billion.

53. On September 27, 2014, Tibco's Board reviewed the Goldman

Spreadsheet and the Vista Defendants' $4.3 billion merger proposal. Goldman

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expressed its opinion that the Vista Defendants' offer was fair, from a financial

point of view, to Tibco's stockholders. After reviewing the Goldman Spreadsheet

and considering Goldman's fairness opinion, the Board accepted the $4.3 billion

offer made by the Vista Defendants.

54. When the Board accepted the Vista Defendants' offer, an agreement

was formed pursuant to which the Vista Defendants would acquire Tibco for an

aggregate purchase price of $4.3 billion.

55. Later on September 27, 2014, Tibco and the Vista Defendants

executed the Merger Agreement. The Merger Agreement does not reflect the

agreed upon aggregate purchase price of $4.3 billion.

56. Plaintiff and the Class seek the reformation of the Merger Agreement

to reflect the agreed upon aggregate purchase price for Tibco of $4.3 billion.

57. Plaintiff and the Class have no adequate remedy at law.

COUNT II(Class Action Count Against the IndividualDefendants for Breach of Fiduciary Duty)



59. This count is brought against the Individual Defendants for breach of

fiduciary duty.

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60. It was the fiduciary obligation of the Individual Defendants to secure

the highest price reasonably available for Tibco. They approved a merger with

Vista's Balboa that both they and Vista agreed would pay an aggregate purchase

price of $4.3 billion for Tibco.

61. When the Individual Defendants learned that Goldman had given an

inaccurate share count just before Vista made its final offer, and that the corrected

number rendered a purchase price $100 million lower than the Individual

Defendants and Vista had agreed upon, the Individual Defendants acquiesced in

the $100 million lower purchase price.

62. The Individual Defendants knew that Vista was willing and had

agreed to pay $4.3 billion for Tibco, but did nothing to secure that price in the final

transaction. Rather, they simply accepted the $100 million lower purchase price

without: (a) demanding that Vista honor the agreed and announced $4.3 billion

purchase price; (b) negotiating with Vista to secure at least part of the $100 million

difference for Tibco's public stockholders; or (c) seeking to hold Goldman

accountable for its error. In short, the Individual Defendants did not secure the

highest price reasonably available in the sale of Tibco.

63. Due to the Individual Defendants' breaches of fiduciary duty, Plaintiff

and the Class are being harmed by the loss of the opportunity to receive the highest

price reasonably available for their shares.

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COUNT III(Class Action Count Against The Vista Defendants

for Aiding and Abetting the IndividualDefendants' Breaches of Fiduciary Duty)



66. This count is brought against the Vista Defendants for aiding and

abetting the Individual Defendants' breaches of fiduciary duty. The Vista

Defendants knew the Individual Defendants owed the Tibco stockholders fiduciary

duties which, in the context of the sale of the Company, required the Individual

Defendants to secure the highest price reasonably available for Tibco.

67. The Vista Defendants agreed to a $4.3 billion purchase price for

Tibco, but used the purported "error" by Goldman in accounting for Tibco's

number of shares outstanding to lower that total purchase price to $4.2 billion.

68. The Vista Defendants used their pre-existing ties to Goldman in order

to get the Individual Defendants to agree to lower the purchase price of Tibco by

$100 million.

69. Plaintiff and the Class have been harmed by the Vista Defendants'

actions.


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COUNT IV(Class Action Count Against Goldman for Aiding and Abetting

the Individual Defendants9 Breaches of Fiduciary Duty)



72. This count is brought against Goldman for aiding and abetting the

Individual Defendants' breaches of fiduciary duty. Goldman knew that the

Individual Defendants owed Tibco stockholders fiduciary duties, which in the

context of a sale of the Company, required them to secure the highest price

reasonably available for Tibco.

73. After the Individual Defendants had secured a $4.3 billion price for

Tibco from the Vista Defendants, Goldman convinced them to accept a purchase

price that was $100 million lower. Goldman was motivated to do so by both its

pre-existing ties to the Vista Defendants and its $47 million fee tied to the

successful closing of the transaction.

74. Plaintiff and the Class have been harmed by Goldman's actions.


COUNT V(Class Action Count Against Goldman for

Professional Malpractice/Professional Negligence)



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77. This count is brought against Goldman for malpractice. Goldman was

engaged by the Special Committee of the Board that was charged with exploring

strategic alternatives for maximization of stockholder value. Goldman's

responsibilities were to advise the Special Committee in the process of exploring

those alternatives (in the end, selling the Company) and to opine on the fairness of

the price ultimately secured in the process. Goldman was obligated to perform

those duties with the care and knowledge of a competent investment banker for the

benefit of Tibco's stockholders whose shares were being acquired in the

transaction.

78. Goldman failed to meet the required standard of care. Being able to

appropriately account for a company's equity is a basic responsibility required of

all investment bankers. Goldman did not properly account for Tibco's equity, and

double-counted the restricted shares when providing information to Vista in

calculating its final per share offer price.

79. Goldman compounded its incompetence by advising the Tibco Board

to accept a purchase price that was $100 million lower than what the Vista

Defendants were willing and had agreed to pay for Tibco.

80. As a result of Goldman's actions, Plaintiff and the Class have been

harmed.


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RELIEF REQUESTED

WHEREFORE, Plaintiff demands judgment as follows:

a) Declaring that this action is properly maintainable as a class action;

b) Reforming the merger agreement to reflect a total purchase price of$4.3 billion for the Vista Defendants' acquisition of Tibco;

c) Declaring that the Individual Defendants breached their fiduciaryduties in agreeing to the reduced total purchase price for Tibco and areliable to Plaintiff and the Class for those breaches;

d) Declaring that the Vista Defendants and Goldman aided and abettedthe Individual Defendants' breaches of fiduciary duty and are liable toPlaintiff and the Class for aiding and abetting those breaches offiduciary duty;

e) Declaring that Goldman committed professional malpractice orprofessional negligence in connection with the services it provided forthe benefit of Tibco's public stockholders;

f) Awarding Plaintiff the costs and disbursements of this action,including reasonable attorneys' and experts' fees;

g) Awarding Plaintiff and the Class compensatory damages, includingboth pre- and post-judgment interest; and

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h) Granting such other and further relief as this Court deems just andproper.

Dated: November 5,2014

OF COUNSEL:

BERNSTEIN LITOWITZ BERGER& GROSSMANN LLP

Mark LebovitchEdward G. TimlinJohn Vielandi1285 Avenue of the Americas38th FloorNew York, New York 10019Tel: (212)554-1400Fax: (212)554-1444

BOTTINI & BOTTINI INC.Francis Bottini, Jr.7817 Ivanhoe AvenueSuite 102La Jolla, California 92037Tel: (858) 914-2001Fax:(858)914-2002

Is/ Cynthia A. CalderGRANT & EISENHOFER P.A.Stuart M. Grant (#2526)Cynthia A. Calder (#2978)123 Justison StreetWilmington, DE 19801Tel: (302)622-7000Fax: (302)622-7100

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paul hudelson, on behalf of himself plaintiff, … 05, 2014 · purported "mistake" and...

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